Freese

This is an appeal from a judgment of the superior court of the city and county of San Francisco in favor of respondent in a proceeding in the nature of quo warranto, which was instituted to test the right to the office of member of the board of pilot commissioners for the ports of San Francisco, Mare Island, and Benicia.

The respondent, Freese, was appointed to said office, by the then governor of the state, in January, 1887, was confirmed by the senate, and, having duly qualified, entered upon the discharge of the duties of the office. Between March 1, 1887, and March 18, 1889, and while the legislature was in session, the present governor nominated the appellant to the senate for the said office; but the senate failed to concur in the said nomination. On March 18, 1889, while the legislature was not in session (and it has not been in session since), the present governor attempted to appoint the appellant to the office, and issued to him a commission, which shows that he was appointed “ vice A. C. Freese removed.”

If the question presented here w^ere an open one, it might fairly be said to be a debatable question. The provisions of the code upon the subject are conflicting, and…

I do not think there is any substantial conflict in the provisions of the different parts of the code bearing upon the question. But if there is, the legislature, in the code itself, has prescribed the rule by which such conflict must be settled, and by which it must be determined which provision must prevail. (Pol. Code, secs. 4481, 4482, 4483.) Acting upon that rule, the questions stated in the prevailing opinion must be resolved by the provisions of chapter 3, title 1, part 3, of the Political Code. The office contended for here is one of those included in the section of this chapter giving the number and designation of the civil executive officers of the state. (Section 343.) Sections 368 and 369 are also a part of the same chapter. The former provides that this officer shall be “appointed by the governor, with the consent of the senate,” and the latter provides that his term of office shall be “during the governor’s pleasure.” The provisions of the code which are claimed to be in con *456 flict with these are found in title 6 of this part,—a title on an entirely different subject-matter, and into which it was not necessary to interject anything on the subject of the…